The Decree 8 June 2001, No 231, entitled "Discipline administrative liability of legal persons, companies and associations without legal personality under Article. Law 11 of September 29, 2000, No 300 ", introduced for the first time, in our legal liability in the criminal authorities, in addition to that of the individual who has materially the tort.
Enlargement responsibility is to engage in criminal punishment of certain assets of entities and, ultimately, the economic interests of shareholders, which, until the entry into force of the law in question, not suffered from the consequences of crimes committed by the deployment, with advantage of the company, directors or employees. The principle of personality of the criminal liability he left them, in fact, free of the sanctions, other than from any damages, whether and to what exists. In terms of criminal charges, in fact, only Articles. 196 and 197 cod. pen. provided (and still provide) a bond insurance for the payment of fines imposed, but only in case of insolvency of the author of material fact. Innovation rules, therefore, is of no small moment, since neither the agency nor the shareholders of foreign companies or associations may be called to criminal proceedings for crimes committed for the benefit or on behalf of the institution. This, of course, leads to an interest in those subjects (partners, associates, etc..) Participating in the events capital of the institution, to monitor the legality and lawfulness of society.
In terms of recipients, the law states "for institutions to provide a legal personality, the companies provided legal personality and societies and associations, including those without legal status ". As you can see, the audience of recipients is large and not always be identified with certainty the line, especially for institutions that operate in the public sector. There is no doubt in this regard, the argument in subjection to the discipline of private companies that carry a public service (on the basis of a concession, etc.).. Against them - as, moreover, against public entities - the issue of liability concerns, among other common to all recipients of the law, even the possibility of both active and passive corruption.
It should be noted that this new responsibility arises only at the completion of certain types of crimes by individuals related in various ways and only entity in the event that the misconduct has been made in the interest or advantage of it. So, not only where the wrongful act has resulted in a benefit, equity or otherwise, for the institution, but also if, in the absence of such a concrete result, the criminal act is justified in the interests of the institution .
Among the crimes which involve the responsibility of the committee may be mentioned corruption, extortion, fraud against the State, the scam to the achievement of public funds, the undue receipt of payments from the State, computer fraud, corporate crimes in general and, most recently, the crimes with the purpose of terrorism or subversion of democracy.
However, there is a form of "exemption" from liability of the body where it is demonstrated in the course of a prosecution for the offenses themselves, to have adopted and effectively implemented the organizational, management and control designed to prevent the realization of criminal activities in question. The system provides for the establishment of an internal auditing body with the task of monitoring the effectiveness of the real model. Avoiding
to take care of the legal nature and classification dogmatic solutions accepted by the legislature, it should be here to draw attention on the practical aspects, which may be of interest to professionals involved in the provision of law. It should be emphasized in this regard that the 'exemption' from the responsibilities of the institution through the assessment of suitability of the internal system of organization and supervision, that the criminal court is called upon to make during the criminal proceedings against the author material of tort law. Therefore, the formulation of models of organization of the control should be to achieve a positive outcome of this assessment of suitability. This particular teleological perspective requires institutions to assess the adequacy of their procedures and the requirements of the above, bearing in mind that the rules in question has come into force.
It should be noted that the law provides for the adoption of the organization, management and control in terms of optionality and not compulsory. The failure is not, therefore, to any sanctions, but exposes the institution to liability for violations made by directors and employees. Thus, despite the mentioned optionality of behavior, in fact, the adoption of the model becomes compulsory if you want to benefit from the outcome. And in this context It should first be pointed out that it is necessary to identify the risks they might run the company, such that it can be attacked to have criminal, to this end, a good business risk identification requires a thorough analysis of the business environment designed to highlight where (in which area , sector, etc.). and how you can check the offenses for which the responsibility is expected of the legal person. Only after the evaluation of the results from this analysis we can establish a control system to reduce to an acceptable level, in terms of probability of occurrence of the event and impact event itself, the risks identified.
As mentioned above, the application of sanctions to institutions directly affects the economic interests of shareholders. So that, in the event of an accident on the way, members could legitimately bring liability actions against directors inert, failing to adopt the model, have prevented the institution to benefit from the mechanism of "exemption" from liability.
prospects just are merely advanced exhibition and certainly not exhaustive of the various issues. Further study should therefore be addressed by competent professionals or associations
Enlargement responsibility is to engage in criminal punishment of certain assets of entities and, ultimately, the economic interests of shareholders, which, until the entry into force of the law in question, not suffered from the consequences of crimes committed by the deployment, with advantage of the company, directors or employees. The principle of personality of the criminal liability he left them, in fact, free of the sanctions, other than from any damages, whether and to what exists. In terms of criminal charges, in fact, only Articles. 196 and 197 cod. pen. provided (and still provide) a bond insurance for the payment of fines imposed, but only in case of insolvency of the author of material fact. Innovation rules, therefore, is of no small moment, since neither the agency nor the shareholders of foreign companies or associations may be called to criminal proceedings for crimes committed for the benefit or on behalf of the institution. This, of course, leads to an interest in those subjects (partners, associates, etc..) Participating in the events capital of the institution, to monitor the legality and lawfulness of society.
In terms of recipients, the law states "for institutions to provide a legal personality, the companies provided legal personality and societies and associations, including those without legal status ". As you can see, the audience of recipients is large and not always be identified with certainty the line, especially for institutions that operate in the public sector. There is no doubt in this regard, the argument in subjection to the discipline of private companies that carry a public service (on the basis of a concession, etc.).. Against them - as, moreover, against public entities - the issue of liability concerns, among other common to all recipients of the law, even the possibility of both active and passive corruption.
It should be noted that this new responsibility arises only at the completion of certain types of crimes by individuals related in various ways and only entity in the event that the misconduct has been made in the interest or advantage of it. So, not only where the wrongful act has resulted in a benefit, equity or otherwise, for the institution, but also if, in the absence of such a concrete result, the criminal act is justified in the interests of the institution .
Among the crimes which involve the responsibility of the committee may be mentioned corruption, extortion, fraud against the State, the scam to the achievement of public funds, the undue receipt of payments from the State, computer fraud, corporate crimes in general and, most recently, the crimes with the purpose of terrorism or subversion of democracy.
However, there is a form of "exemption" from liability of the body where it is demonstrated in the course of a prosecution for the offenses themselves, to have adopted and effectively implemented the organizational, management and control designed to prevent the realization of criminal activities in question. The system provides for the establishment of an internal auditing body with the task of monitoring the effectiveness of the real model. Avoiding
to take care of the legal nature and classification dogmatic solutions accepted by the legislature, it should be here to draw attention on the practical aspects, which may be of interest to professionals involved in the provision of law. It should be emphasized in this regard that the 'exemption' from the responsibilities of the institution through the assessment of suitability of the internal system of organization and supervision, that the criminal court is called upon to make during the criminal proceedings against the author material of tort law. Therefore, the formulation of models of organization of the control should be to achieve a positive outcome of this assessment of suitability. This particular teleological perspective requires institutions to assess the adequacy of their procedures and the requirements of the above, bearing in mind that the rules in question has come into force.
It should be noted that the law provides for the adoption of the organization, management and control in terms of optionality and not compulsory. The failure is not, therefore, to any sanctions, but exposes the institution to liability for violations made by directors and employees. Thus, despite the mentioned optionality of behavior, in fact, the adoption of the model becomes compulsory if you want to benefit from the outcome. And in this context It should first be pointed out that it is necessary to identify the risks they might run the company, such that it can be attacked to have criminal, to this end, a good business risk identification requires a thorough analysis of the business environment designed to highlight where (in which area , sector, etc.). and how you can check the offenses for which the responsibility is expected of the legal person. Only after the evaluation of the results from this analysis we can establish a control system to reduce to an acceptable level, in terms of probability of occurrence of the event and impact event itself, the risks identified.
As mentioned above, the application of sanctions to institutions directly affects the economic interests of shareholders. So that, in the event of an accident on the way, members could legitimately bring liability actions against directors inert, failing to adopt the model, have prevented the institution to benefit from the mechanism of "exemption" from liability.
prospects just are merely advanced exhibition and certainly not exhaustive of the various issues. Further study should therefore be addressed by competent professionals or associations
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